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Full text of "Cinkus v. Diamond Restaurant and Tavern, Board of Inquiry, October 1980 BOI 119"

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IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE 
R.S.O. 1970 c. 318, as amended 



MINISTRY OF LABOUR 

OCT 3 1980 



HUMAN RIGHTS 
COMMISSION 



IN THE MATTER OF a complaint made by Ms. Elizabeth Cinkus 
of Downsview, Ontario, alleging discrimination in employ- 
ment by Diamond Restaurant and Tavern and Mr. George 
Georgacopoulos (also known as George Poulos) and Elizabeth 
Moutoulos, 1718 Jane Street, Toronto, Ontario. 



BOARD OF INQUIRY 
Professor Ian A. Hunter 



Appearances 



Mr. Peter Jacobsen: Counsel for the Ontario Human Rights 

Commission and the complainant, 
Ms. Elizabeth Cinkus. 



Mr. Chris Georgacopoulos: Agent for Diamond Restaurant and Tavern 

and Mr. George Georgacopoulos 



INDEX 



PAGE 



(1 ) Appointment 2 

(2) Complaint 3 

(3) Facts 4 

(4) Decision 13 

(5) Remedy 13 



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DECISION 

(1 ) Appointment 

On April 15, 1980 I was appointed by the Honourable Robert Elgie, 
Minister of Labour, as a Board of Inquiry under the Ontario Human Rights 
Code to hear and decide the complaint of Ms. Elizabeth Cinkus of 
Donwsview, Ontario alleging discrimination in employment by Diamond 
Restaurant and Tavern and Mr. George Georgacopoulos (also known as 
George Poulos) and Elizabeth Moutoulos, 1718 Jane Street, Toronto, 
Ontario. 

On September 17, 1980 a hearing was held in the City of Toronto. 
At the outset both Mr. Jacobsen, appearing for the Commission and the 
complainant, and Mr. Chris Georgacopoulos, appearing for Diamond Restaurant 
and Tavern and Mr. George Georgacopoulos, indicated that they were ready 
to proceed. The first witness was called; he was examined in chief by 
Mr. Jacobsen and cross-examined by Mr. Chris Georgacopoulos. After 
cross-examination, Mr. Chris Georgacopoulos made a motion that the Board 
adjourn in order that the respondent might have an opportunity to retain 
counsel. Not until this motion was the Board aware that Mr. Chris 
Georgacopoulos was not himself a lawyer. 

In opposition for an adjournment, Mr. Jacobsen contended that it 
would cause serious inconvenience to the complainant and to six other 
witnesses, all of whom had been subpoened to attend the hearing on 
September 17, 1980. His position was that the respondent had had 



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adequate opportunity to retain counsel and had been advised in fact to 
do so on more than one occasion by Commission personnel, and that in 
these circumstances the hearing should proceed. 

After noting that the respondents had had a copy of Ms. Cinkus's 
complaint since May 1979, and that the Commission had attempted to 
persuade the respondent to retain counsel in preparation for the hearing, 
and that the Notice of Hearing was dated July 23, 1980, I concluded that 
the respondent had had ample opportunity to retain counsel in advance of - 
this hearing had they wished to do so and that, given the balance of 
inconvenience to witnesses, to the complainant, to counsel for the 
Commission, and to the Board, the matter should be decided and the 
hearing proceed on September 17. Accordingly, Mr. Chris Georgacopoulos's 
request for an adjournment was denied. 

(2) The Complaint 

On April 19, 1979 Ms. Elizabeth Cinkus attended at the offices of 
the Ontario Human Rights Commission at 400 University Avenue in Toronto 
and there filed a complaint alleging discrimination in employment against 
Diamond Restaurant and Tavern because of her sex contrary to the Ontario 
Human Rights Code. 

An amended complaint, identifying the respondents with greater 
particularity, viz., "Diamond Restaurant and Tavern, it agents and 
servants, 1718 Jane Street, Toronto, Ontario and George Georgacopoulos , 

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also known as George Poulos, and Elizabeth Moutoulos" was signed by 
the complainant on January 17, 1980 and introduced and filed as an 
exhibit at the Board of Inquiry. This complaint alleges a violation 
of sections 4(1) (a) and (b) of the Ontario Human Rights Code. 

The clear, uncontradicted evidence at the Board of Inquiry was 
that Diamond Restaurant and Tavern is owned by George Georgacopoulos. 
Elizabeth Moutoulos is a daughter of George Georgacopoulos, the owner, 
who from time to time works in the restaurant as a waitress. She was 
not called as a witness by either side. On the evidence before me, 
I find that Elizabeth Moutoulos was neither an owner nor an agent of 
the owner and the complaint in respect of Miss Elizabeth Moutoulos is 
therefore dismissed. 

(3) The Facts 

The complainant Elizabeth Cinkus was trained in food preparation 
and cooking in Yugoslavia; she received three years' training in a 
cooking school in that country. She completed the cooking course in 
1957. For the next nine years she worked in food preparation and 
cooking, first of all in a hospital in Yugoslavia, and then briefly 
in an itinerant settlement camp for immigrants in Germany. She came 
to Canada in 1966 and has worked as a cook or a chef since that time. 

From 1973 to 1978 she was employed by Mr. Harold J. Martin at the 
Nosherai Restaurant in the Yorkville Shopping Centre. Mr. Martin was 
called as a witness and gave evidence as to Ms. Cinkus's performance of 



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her duties; she was in charge of banquets and he described her as "...a very 
good banquet chef." (transcript, p. 4). Filed as an exhibit was a 
reference which Mr. Martin had written for Ms. Cinkus (a letter written 
before Ms. Cinkus had any contact with Diamond Restaurant giving rise 
to this complaint). 

The letter reads: 

"To Whom It May Concern: 

This is to certify that Elizabeth Cinkus has been in our 
employ from the 12th of June, 73 to the 13th of August, 
78. She was employed as our Banquet Chef handling the 
preparation and decoration of all kinds of ethnic and 
Canadian foods. Mrs. Cinkus is an excellent cook and 
handles her duties to our full satisfaction. Mrs. Cinkus 
left of her own volition." 

Ms. Cinkus explained that she left this employment when the 
restaurant moved from its Yorkville location to 6900 Airport Road 
because daily transportation from where she lived was too difficult, 
apparently necessitating five bus transfers. After Nosherai, she was 
briefly employed as a cook by T. Eaton Company, and then by Diana Sweets, 
in each case leaving because the salary was not commensurate with her 
expectations. 

There was considerable evidence led to establish that Ms. Cinkus 
was a skilled cook and a conscientious employee. In addition to 
Mr. Martin's oral evidence and letter of reference, additional letters 
of reference were filed from two previous employers (James Cook Hotel 
and Papa Doc's; Exhibit 13) and some newspaper stories attesting to 
Ms. Cinkus's culinary abilities. Although this was hearsay evidence, 




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the complainant's competence as a cook or chef was not seriously 
challenged, and I find as a fact that she was well qualified for the 
position for which she applied at Diamond Restaurand in April 1979. 

Ms. Cinkus testified that she first became aware of a chef's 
position at Diamond Restaurant through a newspaper advertisement. She 
called the restaurant and asked for the manager to enquire about the job. 
An unidentified female person allegedly told her: "No job for a woman." 
In cross-examination, Ms. Cinkus gave the unidentified woman's response 
as: "We're looking for a chef but not for a woman." Ms. Cinkus was 
unable to give the exact date of this telephone call but she said that 
it was a few days before Canada Manpower sent her over to Diamond 
Restaurant (which was on April 18, 1979). 

Shelley Giardino, an employment counsellor with the Canada Manpower 
centre at 1747 Jane Street, gave evidence. She identified two job order 
forms. These are forms which are completed by Canada Manpower officials 
when an employer solicits their assistance in finding a suitable employee. 
The first job order form (Exhibit 10) is dated April 3, 1979, identifies 
the employer as Diamond Restaurant, 1718 Jane Street, Weston, and the job 
as "chef". Salary is given as "$240 plus depending on experience"; 
requirements "experienced, clean and neat" and the duties specified are 
"chef, sixty seat restaurant, make gravies and sauces." The form also 
has a box with the heading "apply to" and it indicates "Jim--direct. " 
According to Ms. Giardino's testimony Canada Manpower records established 
that this job was filled by a "walk-in" (which means, apparently, someone 



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other than an applicant referred by Canada Manpower) and that this job 
order was subsequently cancelled. 

An identical job order form (Exhibit 11) was filled out on April 17, 
1979, again seeking an experienced chef and again containing the notation 
"apply to: Jim--direct. " 

On April 18, 1979 Ms. Cinkus attended at the Canada Manpower Centre 
and spoke there with Mrs. Margaret Wurdemann. Mrs. Wurdemann informed 
Ms. Cinkus of the chef vacancy at Diamond Restaurant and gave her the job 
referral notice (Exhibit 4). Ms. Cinkus expressed some reluctance to go 
over to Diamond Restaurant (which is very close to the Canada Manpower 
Centre) because of her experience in telephoning the restaurant a few days 
before and being told that the job was not for a woman. In any event, at 
Mrs. Wurdemann's suggestion, she did go. 

On entering the restaurant, Ms. Cinkus testified that she saw two 
woman one of whom appeared to be a waitress. This woman, together with 
a man she identified as George Georgacopoulos, approached her and she 
asked for the manager, at the same time indicating that she was interested 
in the chef job. She showed the job referral notice which she had obtained 
at Canada Manpower to George Georgacopoulos. Her evidence was that he sat 
down, looked at the form, and told her that the job was not for a woman but 
for a man. He then showed the paper to the woman, who appeared to be an 
employee working in the restaurant, and the woman allegedly said that the 
restaurant had never had a woman chef before. 



At this point, Ms. Cinkus left, returned to Canada Manpower, and 
related what had happened to Mrs. Wurdemann. Mrs. Wurdemann then referred 



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Ms. Cinkus to the Operations Supervisor, Mr. Richard Dellabella, who 
advised Ms. Cinkus to file a complaint with the Ontario Human Rights 
Commission. 

In cross-examination, the respondent made much of the fact that the 
job order form stated "apply to: Jim--direct" and the job referral form: 
"Attention: Jim." 

There is no doubt that when Ms. Cinkus went to Diamond Restaurant on 
April 18, 1979 she did not ask for Jim but instead for "the manager." In 
my opinion, nothing turns on this: clearly, she requested to speak with 
a person in authority (i.e., the manager) and immediately indicated to 
the person she spoke to, Mr. George Georgacopoulos , that she was there 
about' the chef job. In fact, she spoke with the owner and he told her that 
the position was not for a woman. The "Jim" referred to in the referral 
form is actually the owner's son, Jim Poulos, who originally placed the 
job order form with Canada Manpower. In the course of giving his evidence, 
Mr. Jim Poulos describes his duties as "everything; I do everything there. 
When my brother is not there, I do managing... I look after the bar, the 
kitchen, everything, staff." Accordingly, Ms. Cinkus' s request to speak 
to the manager could be construed as rough compliance with the form since 
Jim Poulos was, at least in part, a manager of Diamond Restaurant. 

The following day, April 19, 1979, Shelley Giardino of the Canada 
Manpower Centre telephoned Diamond Restaurant and spoke to an unidentified 
male person. She enquired as to the reason for Ms. Cinkus 's failure to 
obtain employment and, receiving no satisfactory reply, indicated that 



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unless the manager phoned her back with some satisfactory explanation 
the job order that had been placed with Canada Manpower would be cancelled 
because of alleged sex discrimination. She received no call back from 
Diamond Restaurant and the job order was in fact cancelled. 

The respondent's explanation for Ms. Cinkus's treatment at Diamond 
Restaurant on April 18, 1979 was that it was all "a misunderstanding" 
arising from the fact that Ms. Cinkus spoke to Mr. George Georgacopoulos, 
the owner, instead of Mr. Jim Poulos, one of the owner's sons. Mr. George 
Georgacopoulos, it was alleged, had considerable difficulty understanding 
and communicating in English and "the misunderstanding" was attributed 
essentially to language difficulties. 

For the following reasons, I reject this explanation: 

(1) Ms. Cinkus's evidence was that she had no difficulty conversing 
with Mr. George Georgacopoulos on April 18, 1979 and that he clearly 
communicated the reason why she was not to be considered for employment: 
namely that the job was for a man and not for a woman. I observed 

Ms. Cinkus closely when she gave her evidence and I am satisfied that 
she was telling the truth. 

(2) Two Human Rights officers, Messrs. Kirtna and Caffrey testified 
as to a meeting they had with Mr. George Georgacopoulos on May 7, 1979 at 
which time he appeared capable of understanding and communicating in 

Engl ish. 

(3) A language problem is more likely, in my opinion, to have 
manifested itself by confusion, uncertainty, perhaps even rudeness. 

Ms. Cinkus observed none of these things. Instead, her evidence is that 



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she was told, unequivocally and bluntly, on two occasions on April 18, 
1979 by two different persons in Diamond Restaurant, that the job was 
not for a woman. 

Mr. George Georgacopoulos was present at the Board of Inquiry but 
did not give evidence so that I had no firsthand opportunity to assess 
his proficiency, or lack thereof, in English. 

After Ms. Cinkus filed her complaint with the Commission, Mr. Aarne 
Kirtna, who was then a human rights officer in the employ of the Ontario 
Human Rights Commission, attended at Diamond Restaurant on May 3, 1979 
and left a copy of the complaint with Elizabeth Moutoulos who identified 
herself as the daughter of the owner, George Georgacopoulos. Mr. Kirtna 
also arranged to meet with Mr. Jim Poulos on May 7, 1979. 

At the May 7, 1979 meeting Mr. Kirtna, together with his supervisor 
Mr. Colm Caffrey, met with both George Georgacopoulos and Jim Poulos at 
Diamond Restaurant. Each gave a slightly different explanation of why 
Ms. Cinkus was not hired. Mr. George Georgacopoulos allegedly said that 
he told Ms. Cinkus to come back when his son, Jim [Poulos], was present. 
Jim Poulos, however, told the officers that they had hired a chef named 
"Jerry" so that the position which Ms. Cinkus applied for had already been 
filled. When the human rights officers requested further information about 
"Jerry" such as his address and the date on which he commenced employment, 
Jim Poulos said that he could not provide this information because the 
company's books were not quite up to date. However, he promised the 
officers that he would have such information if they returned on May 10, 1979. 



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The same two officers did return on May 10, 1979 at which time 
Jim Poulos stated that he had no documentation concerning "Jerry," nor 
could he give precise employment dates. Jim Poulos did, however, take 
the officer to the kitchen area and showed them a large, heavy tureen of 
soup, explaining that a chef would have to be able to lift it from floor 
to stove, a distance of approximately three and a half feet. In fact, he 
invited Officer Kirtna to try lifting it. The officer did lift it and, 
in his evidence, described it as "heavy." 

I mention this incident because it was the only evidence, if such 
it can be called, which might conceivably go to a defence based upon 
section 4(6) of the Code. Section 4(6) states: "The provisions of this 
section relating to any discrimination, limitation, specification or 
preference for a position or employment based on. . .sex. . .do not apply 
where. .. sex. .. is a bona fids occupational qualification and requirement 
for the position or employment." 

Clearly there is insufficient evidence on which to base a finding 
that being male was "...a bona fide occupational qualification and 
requirement for the position or employment" as chef at Diamond Restaurant 
and, to their credit, the respondents did not contend this. 

In giving evidence, both Jim Poulos and Chris Georgacopoulos stated 
that Diamond Restaurant had never had a female chef (although they had had 
female dishwashers, kitchen help, waitresses, etc.); however, Chris 
Georgacopoulos said that the restaurant would hire anyone, male or female, 
who was competent, qualified and could perform the work involved. 



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In his evidence Mr. Chris Georgacopoulos explained that prior to 
April 1979 most of the chef work at Diamond Restaurant had been done 
by another brother, Nick Georgacopoulos. However, Nick decided to get 
married and go to Europe for a honeymoon. Accordingly, he contacted 
Canada Manpower to put in the job order on April 3, 1979 (Exhibit 10) 
seeking a full-time chef. At the Board of Inquiry Mr. Chris Georgacopoulos 
produced payroll and employment records which showed that the man referred 
to by Jim Poulos as "Jerry" was, in fact, Larry Savvis, and that he 
commenced employment on May 4, 1979 and ceased his employment on June 4, 1979. 

At various times, the respondents put forward three possible explana- 
tions for Ms. Cinkus's failure to obtain employment as a chef when she 
applied at Diamond Restaurant on April 17, 1979: 

(1) A "misunderstanding" due to language difficulties of George 
Georgacopoulos. For reasons previously given, I reject this explanation. 

(2) The faint suggestion (and it was no more than that) that a 
woman might not be strong enough to lift the soup tureen from the stove 
to the floor. As the respondents themselves admitted, this would depend 
on the strength of the particular woman and, in Ms. Cinkus's case, she 
was never given an opportunity to try. Accordingly, there is no basis 
for a defence pursuant to s. 4(6). 

(3) During the investigation of Ms. Cinkus's complaint, Jim Poulos 
suggested to Commission officers that Ms. Cinkus was not hired because 
"Jerry" (or Larry Savvis) was already employed. However, the company's 
own payroll records confirm that Larry Savvis did not commence his 





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employment until May 4, 1979. Ms. Cinkus applied on April 18, 1979, 
approximately two weeks before that. Mr. Jim Poulos, on cross-examina- 
tion, conceded that Diamond Restaurant did not have a full-time chef 
on April 18, 1979 and that they were in fact looking for a chef when 
Ms. Cinkus applied (transcript; page 150 and 152). 

(4) DECISION 

On all the evidence presented at this Board of Inquiry, I am satisfied 
that on April 18, 1979 Diamond Restaurant, acting through its owner, 
Mr. George Georgacopoulos, discriminated against Elizabeth Cinkus in 
refusing to employ her for the position of chef because of her sex 
contrary to section 4 of the Ontario Human Rights Code. 

(5) Remedy 

Once a Board of Inquiry has decided that any party has contravened 
the code, section 14(c) (b) provides that the Board may "...order any 
party... to do any act or thing that, in the opinion of the Board, consti- 
tutes full compliance with such provision and to rectify any injury caused 
to any person or to make compensation therefore." 

Insofar as possible, the order of the Board should attempt to put 
the complainant in the position she would have been in but for the illegal 
discriminatory act. 



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Ms. Cinkus made it clear that she has no wish now to obtain employment 
at Diamond Restaurant. She is presently employed as a chef at Tri -Bel 1 
Country Club in Thornhill. 

When Ms. Cinkus applied at Diamond Restaurant on April 18, 1979 she 
was unemployed. Although she continued to look for work, she was not 
subsequently employed until she was hired as a cook by the T. Eaton Company 
on August 7, 1979. Thus, she was without salary for a period of nearly 
four months and, following precedents established by other Boards of Inquiry, 
I might well have ordered that she be compensated for lost salary 
throughout that four month period. 

However, Mr. Jacobsen very fairly conceded that he would accept the 
evidence of Chris Georgacopoulos to the effect that his brother Nick 
resumed the chef duties on his return from honeymoon in Europe and that, 
at that time, Ms. Cinkus might have been let go in favour of Nick. 
Accordingly, Mr. Jacobsen requested five weeks' compensation for lost 
•salary; specifically, five weeks at $240 per week--the minimum salary 
specified in the Canada Manpower job order form. I believe that this is 
eminently fair and I order the respondent to compensate the complainant in 
the amount of $1200 for lost wages resulting directly from the discriminatory 
act. 

Mr. Jacobsen further submitted that I should make an award of several 
hundred dollars by way of general damages for the inconvenience and 
humiliation caused to Ms. Cinkus by the discriminatory act. In support of 
my authority to make such an award he cited several previous Board of 
Inquiry decisions. (Cf. Shack v. London Dri v-Ur-Sel f ; June 7, 1974; 



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Gabidon v. Golas , July 9, 1973). 

When Ms. Cinkus was asked why she made a complaint to the Ontario 
Human Rights Commission, she testified as follows: "Why I made complaint? 
At this time I leave my job and I never got before trouble, I mean to 
find a job and this time I really had to find a job and I feel really 
bad when I go ahead and they say they don't take a woman, I feel so low. 
I say 'What's a woman can't be a chef any more in this country?' and that's 
why I go ahead and complain it." (transcript p. 39). 

I am satisfied that Ms. Cinkus was upset and hurt by the illegal 
discriminatory act of the respondent. However, I am also satisfied that 
the respondent did not act vindictively or maliciously. On the evidence, 
I find that there was no intent to humiliate or wound Ms. Cinkus 's 
dignity or spirit and that part of the problem may have stemmed from 
language difficulties. Also, there would appear to be a lack of communica- 
tion, initially between Mr. George Georgacopoulos and his sons, and then 
subsequently between Mr. George Georgacopoulos and the complainant 
Ms. Cinkus. 

Accordingly, I do not intend to award substantial general damages. 
I hereby order the respondents to compensate Ms. Cinkus in the amount 
of $150 for injury to dignity, reputation and feelings arising from the 
discriminatory act. 

Section 14(b)(1) defines the parties to a proceeding before a Board of 
Inquiry and includes "(a) the Commission, which shall have the carriage of 



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the complaint." On behalf of the Commission, Mr. Jacobsen requested the 
inclusion of three terms in any order that this Board might make: 

(1) that the respondent be required to write a letter to the Commission 
indicating his intention to comply fully with Human Rights legislation in 
future; 

(2) that the respondent be required to post Human Rights Commission 
cards on his premises; and 

(3) that the respondent be required to notify the Commission of all 
employment vacancies at Diamond Restaurant, prior to public advertisement, 
for a period of one year. 

I realize that such terms have often been included in the orders of 
Boards of Inquiry appointed under Human Rights legislation in the past. 
Nevertheless, I decline to include any of these terms since I regard them 
all as offensive to the respondent's fundamental liberty. Everyone in this 
country is under a duty to obey the laws of the jurisdiction in which they 
reside; a letter to the Commission indicating the respondents intention to 
abide by the Ontario Human Rights Code is superfluous; similarly, the 
posting of Code cards. Nor do I believe that one past violation of the 
Code, for which recompense has been made in accordance with a Board's 
order, should so stigmatize the respondent's conduct in future that he is 
made to submit employment vacancies to a government agency for some type of 
advance screening. 

However, since the Commission is a party and since the burden of 
enforcing a Board's order falls on the Commission, I order the respondents 



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Diamond Restaurant and Mr. George Georgacopoulos, to notify the Chairman 
of the Ontario Human Rights Commission in writing when they have paid 
$1,350 to the complainant in order that the Commission may be satisfied 
that compliance with the Board order has occurred. 




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IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE, 
R.S.O. 1970 c. 318, as amended 



IN THE MATTER OF a complaint made by Ms. Elizabeth Cinkus 
of Downsview, Ontario, alleging discrimination in 
employment by Diamond Restaurant and Tavern and Mr. George 
Georgacopoulos (also known as George Poulos) and Elizabeth 
Moutoulos, 1718 Jane Street, Toronto, Ontario. 



This matter coming on for hearing on the 16th day of 
September, 1980, before this Board of Inquiry, pursuant to 
the appointment of Robert Elgie, Minister of Labour, dated 
the 15th of April, 1980, in the presence of Counsel for the 
Commission and the complainant, and an agent for the 
respondent, upon hearing evidence adduced by the parties and 
what was alleged by the parties, and upon finding that the 
complaint was substantiated by the evidence: 



IT IS ORDERED THAT 

(1) the respondent pay to the complainant the sum of 
one thousand three hundred and fifty dollars ($1350.00) as 

compensation for wages lost, and injury to dignity, reputation 
and feelings as a result of the discriminatory act; and 

(2) the respondent notify the Chairman of the Ontario Human 
Rights Commission in writing when it has complied with the Board' 
order by the payment of $1350 to the complainant. 



Dated at the City of London in the County of Middlesex 
this 23rd day of October, 1980. 



ORDER 




/AN A. HUNTER 
BOARD OF INQUIRY